Vivekkumar Pramodbhai Barot vs State Of Gujarat
2023 Latest Caselaw 2177 Guj

   R/CR.MA/8250/2022                                  ORDER DATED: 09/03/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 8250 of 2022

                  In R/CRIMINAL APPEAL NO. 899 of 2022
                                  With
                    R/CRIMINAL APPEAL NO. 899 of 2022
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                       VIVEKKUMAR PRAMODBHAI BAROT
                                   Versus
                             STATE OF GUJARAT
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Appearance:
DARSHIT R BRAHMBHATT(8011) for the Applicant(s) No. 1
MR MAKBUL I MANSURI(2694) for the Respondent(s) No. 2
MR.H.K.PATEL, APP,for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 09/03/2023
                               ORAL ORDER

[1] RULE. Learned Additional Public Prosecutor waives service of

notice of rule on behalf of the respondent-state.

[2] This application is for Special Leave to Appeal filed by the

applicant against the judgment and order dated 30.03.2022 in Criminal

Case No.2401 of 2019 by the 2nd Additional Chief Judicial Magistrate,

Nadiad. In the aforesaid order, the respondent No.2-accused was

acquitted in the proceedings under Section 138 of the Negotiable

Instrument Act.

[3] Learned Advocate for the applicant submitted that the erroneous

conclusion is drawn that the respondent-accused has successfully

rebutted the presumption under the provisions of NI Act merely on the

R/CR.MA/8250/2022 ORDER DATED: 09/03/2023

further statement recorded under Section 313 of the CRPC. It is

submitted that though the statutory demand notice was served upon

the respondent accused on 24.05.2019, there is no reply by the

respondent-accused to create a ground for rebutting the presumption

which has been taken at the stage of recording of further statement

under Section 313 of the CRPC. Learned advocate for the applicant has

also submitted that even if a statement under Section 313 of CRPC is

perused, then also the transaction is admitted and that there is some

amount due which is coming on record and therefore, when the

cheque and the signature/content of the cheque are not disputed, in

that case, merely by appreciating the statement under Section 313 of

CRPC, the Court could not have recorded acquittal.

[4] In view of the aforesaid, Special Leave to Appeal is granted.

Accordingly, present Criminal Misc. Application stands allowed. Rule is

made absolute accordingly.

===================================== ORDER IN CRIMINAL APPEAL

1. The Appeal is admitted.

2. Issue bailable warrant in the sum of Rs.5,000/- (Rupees Five

Thousand only) against the respondent- original accused.

R/CR.MA/8250/2022 ORDER DATED: 09/03/2023

(A.Y. KOGJE, J) SIDDHARTH